Caproon v. Mitchell

• Decision Date: 22 November 1906
• Docket Number: 14,494
• Citation: 110 N.W. 378,77 Neb. 562
• Parties: WILL CAPROON, APPELLEE, v. HAYDEN W. MITCHELL, APPELLANT
• Court: Nebraska Supreme Court

110 N.W. 378

77 Neb. 562

WILL CAPROON, APPELLEE, v. HAYDEN W. MITCHELL, APPELLANT

No. 14,494

Supreme Court of Nebraska

November 22, 1906

APPEAL from the district court for Antelope county: JOHN F. BOYD JUDGE. Affirmed.

AFFIRMED.

E. D Kilbourn, for appellant.

O. A Williams, contra.

DUFFIE, C. JACKSON, C., concurs.

OPINION

DUFFIE, C.

In an action commenced in county court, Caproon alleged that the defendant sold and delivered to him a horse for the sum of $ 45, then duly paid by a promissory note for that amount; that the horse at the time of the sale was mortgaged to the Edwards-Bradford Lumber Company, who thereafter took possession from the plaintiff, and that the horse was wholly lost to him. A trial resulted in favor of the plaintiff, and defendant appealed to the district court. The plaintiff's petition in the district court was the same practically as that filed in the county court, except that it contained the additional averment that the note which plaintiff had given to defendant on the purchase of the horse "had been sold and transferred by the defendant before maturity for a valuable consideration, to the Clearwater State Bank." In the district court a motion was made to strike from the petition this additional averment, for the reason that it presented an issue not raised or tried in the county court. The motion to strike was overruled, and this ruling is alleged as error. An examination of the motion for a new trial discloses that the ruling of the court on this motion was not alleged as error or urged as a reason why a new trial should be granted. We cannot, therefore, consider this assignment. Barker v. Davies, 47 Neb. 78, 66 N.W. 11. The evidence taken upon the trial has not been preserved in a bill of exceptions, and we have nothing before us but the pleadings and the judgment entered. We can, therefore, only determine whether the judgment is supported by the pleadings. If the defendant was still in possession of the note given him on the purchase of the horse, the plaintiff would have a perfect defense thereto, but it was sold before maturity to a good-faith purchaser. As against this purchaser the plaintiff has no defense. He has, therefore, been damaged to the amount of his note and interest by the horse being taken from him on a prior valid claim. We discover no error in the record, and recommend an affirmance of the judgment.

JACKSON, C., concurs.

By the Court:...